The Kavanaugh Hearings: Day Two
“I owe my loyalty to the Constitution.”
The second day of the confirmation hearings for Judge Brett Kavanaugh for the Supreme Court picked up essentially where they left off on day one. Protesters continued to interrupt the proceedings, the members of the Senate Judiciary Committee revealed again their ideological dispositions beneath the veneer of serving the public good and the nominee proceeded apace with his deliberate, careful and cheerfully non-responsive approach to the interrogation.
As has been noted, Kavanaugh entered the fray of the confirmation process with one of the longest paper trails of any modern nominee aspiring to the nation’s highest court. This has been checked to some degree by the Republican strategy of having the White House invoke Executive Privilege on 100,000 pages of possible testimony and then staging a 42,000 page document dump on the Judiciary Committee the night before the start of the hearings. Nevertheless, that still leaves multiple lines of inquiry, room for sharp questioning and a very long track record of opinions, writings and experiences to explore.
Based on his first full day of questioning, however, the length of the paper trail and the partisan cast of his career did not create any serious problems for the nominee. As he needed to be in the face of extremely hostile questioning, Kavanaugh was calm, efficient and above all prudent in his responses. That did not mean, of course, that the Democrats were not willing to push ahead with their strategy of calling for delays and more documents. They were assisted by the stream of protesters who had been granted admittance to the hearings. Time and again, the senators and the nominee were interrupted by left-wing demonstrators. The flow of discussion was interrupted, and the result was that the proceedings lacked coherence, structure and decorum. As with day one, day two was a microcosm of the country today: divided, distracted by laughable sideshows, largely incapable of dialogue and dominated by the figure of Donald Trump and the obsession of many in the Democrat Party with abortion.
Trump Looms Large
Much as happened at the heavily politicized funeral of Senator John McCain, the Kavanaugh hearings have been much taken up with President Trump and whether the prospective justice would be obedient to him or the Constitution. As many Democrats are convinced that Trump is an existential threat to the Constitution – Connecticut Sen. Richard Blumenthal referred to the president as an “unindicted co-conspirator” – they asked Kavanaugh repeatedly about his views on presidential authority, whether a president could pardon himself and how far he might be willing to go to safeguard the law. Kavanaugh certainly knew this was going to be a major topic for the hearings, and he went to some lengths to assure the Senators and the American public that he would be independent and not beholden to the president who nominated him. “The first thing that makes a good judge is independence,” Kavanaugh said, “not being swayed by political or public pressure. That takes some backbone, that takes some judicial fortitude.”
He deflected efforts to ask him about the notion of a president pardoning himself – a clear allusion to Trump – responding that self-pardons are "something I've never analyzed...or written about," adding it is a "hypothetical question that I can't begin to answer in this context as a sitting judge and nominee." He also stressed, “The executive branch is subject to the law, that's an important part of the constitutional structure.”
Finally, asked by the Republican Senator Orrin Hatch from Utah about the place of his loyalty when judging a president versus the Constitution, Kavanaugh responded, “If confirmed to the Supreme Court and as a sitting judge, I owe my loyalty to the Constitution. That is what I owe loyalty to. And the Constitution establishes me as an independent judge bound to follow the law as written, the precedents of the Supreme Court as articulated subject to the rules of stare decisis.”
Stare decisis, the legal principle of precedent, was prominent also in the back and forth between Kavanaugh and California Democrat Dianne Feinstein over the issue that consumes the Left: abortion. Kavanaugh declined as nominees always do to answer directly, but he did note he understands the “importance of precedence” regarding Roe v. Wade and accepts that the case has “been reaffirmed many times over the past 45 years.”
Such assurances were far from satisfactory to Democrats on the committee, especially Feinstein who demanded he acknowledge the importance of abortion to some women. Kavanaugh sounded a conciliatory note, saying, “I understand how passionate and how deeply people feel about this issue. I understand the importance of the issue. I understand the importance that people attach to the Roe versus Wade decision, to the Planned Parenthood versus Casey decision. I don't live in a bubble. I understand, I live in the real world. I understand the importance of the issue.”
He also had an exchange with Senator Blumenthal on the judge’s use of the term “abortion on demand” in his dissent in an earlier case that involved an undocumented minor seeking an abortion. Blumenthal claimed that the term is a code for abortion opponents revealing Kavanaugh’s sympathies. “I'm not familiar with the code word,” Kavanaugh said. “What I am familiar with is Chief Justice Burger in his concurrence in Roe v. Wade itself. So he joined the majority in Roe V. Wade, and he wrote a concurrence that specifically said that the court today does not uphold abortion on demand. That's his phrase, and he joined the majority in Roe v. Wade. And what that meant in practice over the years, over the last 45 years, is that reasonable regulations are permissible so long as they don't constitute an undue burden.”
A Good Husband
The strategy laid out on day one was to avoid traps and miscues. That was managed with relative ease. The other part of the strategy was to be approachable and likeable. Senator Lindsey Graham (R-S.C.), helped bring out Kavanaugh’s human side. Askigg him to speak to the average person about the work of a Justice, the judge replied, “I understand the real world effects of our decisions. In my job as a judge for the last 12 years, I've gone out of my way in my opinions and at oral arguments ... to make clear to everyone before me that I understand the situation, the circumstances, the facts.”
There was also a rare moment of cross-party humor when Graham asked Kavanaugh how he would like to be remembered. “A good dad, good judge" Kavanaugh responded. Feinstein chimed in, saying, “Good husband,” prompting Graham to say, “I think he's getting it.” To laughter, Kavanaugh added, “Good husband.”
As with virtually all modern confirmation hearings, the fundamental reality is that all of the members of the Senate Judiciary Committee have already made up their minds and had done so on the day in late June that Justice Anthony Kennedy announced his retirement. Aware of the golden political moment presented to them, the GOP members fretted only about the irascible and mercurial nature of the president who had been blessed to choose a second nominee for the Supreme Court in two years. Would he erratically choose a stealth liberal in the mold of Justice David Souter or even another Justice Kennedy? Would this moment be lost?
President Trump, however, has been remarkably disciplined in his choices for the judiciary, and the picks for the Supreme Court have been no exception. While many conservatives to be sure wished for Judge Amy Coney Barrett because of the very fight her nomination would have provoked, Kavanaugh was always seen as the safer nominee, the one who could get confirmed with perhaps even a few Democrat votes.
That approach at least as of the end of Day Two in the hearings has been vindicated. Several more days of intense scrutiny remain, and while so far Kavanaugh has not dazzled he has gained ground toward his confirmation. Should the remainder of the questioning fail to trap Kavanaugh and should there be no massive surprises in his paper trail, only two serious questions will remain: will the pro-abortion Republican Senators Susan Collins from Maine and Lisa Murkowski of Alaska vote for Kavanaugh and if not, will he still be confirmed with the votes of a few Democrats seeking re-election in deep red states, such as Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota.
The path is dwindling for the Democrats, and possibly the most alarming development of the day took place away from the hearing room. When asked by CNN if he had seen anything disqualifying so far in Kavanaugh's testimony, Sen. Manchin replied, “No, I haven't seen anything from that standpoint. He’s handled himself very professionally ... His dialogue is more specific in his approach to being a jurist.” Manchin restated that he would reserve judgment until after the hearings, but the direction was obvious, and with it the road for Democrats to block the nomination just became even narrower.